Meanwhile, Alito's record on the "free exercise" and "establishment" clauses of the First Amendment is stellar. He has ruled repeatedly that state action specifically targeting religious practice must be struck down. In one case, for example, Judge Alito ruled that a police department policy prohibiting beards worn for religious reasons but allowing beards worn for health reasons violated the "free exercise" rights of Muslim police officers. Alito has also ruled that religious viewpoints may not be discriminated against on "establishment of religion" grounds. In C.H. v. Oliva (2000), a case considering whether a public school teacher could single out one child's religious Thanksgiving poster for exclusion from the walls of the classroom, Alito dissented, stating that the child's First Amendment free speech rights were violated when viewpoint discrimination based on religion occurred.
But even beyond his imposing judicial record, it's Alito's general attitude toward the role of the law that endears him to true constitutionalists. In a 1986 University of Pittsburgh Law Review piece, Alito railed against an 1886 decision of the Supreme Court, stating that the "manifest[ly] flaw[ed]" decision had probably been upheld simply because of the "brute force of stare decisis," combined with the determination of Justice Brandeis and others to push for "the concept of a constitutionally protected zone of privacy." This is the language of one who respects the Constitution more than judges. Never would Justice O'Connor describe precedent as the "brute force of stare decisis." She would be more likely to praise precedent in flowing, grandiose terms, since in her view, it is judges, not legislatures, who provide stability and functionality.
No such judge-worship for Judge Alito. In the same law review piece, Alito states that on a particular issue, "The Supreme Court's past and future difficulties are the wages of insisting that the Constitution answer a question that should be entrusted to the mundane processes of democratic government." The tongue-in-cheek manner reveals a deeper truth about Alito's perspective: Alito realizes that the Supreme Court's attempt to impose its own values under the guise of a Constitution that does not address certain questions actually usurps power from the people.
And so President Bush is triumphant once again. Alito will be confirmed, barring a travesty the likes of which would make Robert Bork's rejection pale in comparison. The Supreme Court will turn away from self-worship, back toward the Constitution. And the American people will be the beneficiaries.
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